108 Ala. 553 | Ala. | 1895
1- There was no necessity in the beginning to have made S. W. John a party defendant to the bill. Neither the main defendant, the Elyton Land Co., nor any other defendant, had any interest in his being or not being a party. There was no joint interest between him and them. The amendment by which he was stricken out, — made in term-time, on the 15th September, 1892, — was, in no sense, an amend
2. When the bill was filed, the defendant, The Ely-ton Land Co., interposed a demurrer to it, based on several grounds. It was overruled, and on appeal to this court, the decree of the lower court was affirmed. This defendant, we infer, when the cause returned to the lower court, proposed to refile the same demurrer when there had been no amendment made to the bill, except its dismissal against the said S. W. John. The demurrer as refiled does not- appear in ihe transcript, bjit the motion to strike, and the do‘-‘. o tlierofor do appear, and from statements of counsel in their briefs, it may be assumed that the original demurrer was either refiled without leave, or proposed to he refiled'. There was no error in not allowing the demurrer to be refiled. It had been condemned by this court, and dismissal of the bill against said John,- to -whom the demurrer in no wise related, offered no justification for its refiling.
3. Another ground of error as assigned, is that.the court erred in striking the pinas of appellant from the file. The motion of the complainant to disallow the pleas, stated that they were filed without leave of the court, on the 27th of February, 1894, and the order of the court striking them from the file, recites that they were filed on that date. It docs not appear in the transcript, that any pleas were filed on the 27th of February, 3894. Cn the 28th of February, 1894, it does appear, that the defendant amended its answer to the bill, which amendment appears indom°dj “Amendment to bill,” and recites in the beginning. “The defendant, The Ely-ton Land Company, by leave of the court, comes and for pi a ^ ihe bill of ■n-i- as amended, amends its
There is nothing here set up, if said amendment be treated as a plea, to bar complainant in this suit. The fact that she had been endowed of other lands of her husband, did not prevent her from dower in those described in the bill, unless she was otherwise barred. The fact that defendant, and those under whom it claims, had been in the quiet and peaceable possession of said lands for fifteen or any number of years short of twenty, would not bar complainant. “It requires twenty years to raise the presumption, that the claim was relinquished or otherwise barred or cut off.” — 1 Brick. Dig 619, §§ 105, 106 ; Elyton Land Co, v. Denny, 96 Ala. 337.
4. On the direct examination of the complainant, she testified, that before her husband’s death, his papers were put by him in a small trunk. On the cross examination she stated, that after his death, Mr. Eubank, the administrator, came and got some papers, but what papers he got she did not know ; that she gave the trunk to a little child, and the last she saw of it, it was under the house, and she did not know what became of it; that the papers left in the trunk did not seem to be of much importance, and that she looked over them but did not know what they were or whether they had been destroyed or not. She had been examined in chief and on the cross about certain deeds and conveyances, and the purpose of the complainant was to show that there was no deed in the trunk, and on the part of defendant, that there might have been one in it. On the re-direct examination, she testified, that there was no deed among the papers. After the examination had closed, defendant’s counsel proposed to ask the witness the questions : “How do you know that there was no deed in the little trunk? Do you know what a deed is?” “Explain what a deed is?” on the ground, that the matter about the deed in the trunk was new, drawn out, on the re-direct examination, as to which he had a right to cross-examine the witness. The complainant’s counsel objected, on the ground, that the examination, was closed ; that it appeared from the testimony that the wituess had been examined and cross-examined in reference to deeds, and that the proposed re-cross-examination was not allowable.
6. The only remaining question in the case, that needs to'be considered is, whether or not Joab Bagley, the former husband of complainant, in his life time, sold and conveyed the land described in the bill, to W. W. Brown, under whom, by mesne conveyances, the defendant claims title. IE he did, as is contended by defendant, complainant is not now entitled to dower. If he did not, as complainant contends is the fact, she is dowable of the said lands.
The complainant proved title in her husband, through a certified copy of a patent to the land, issued by the United States Government to him, in the year 1854; that she and her husband lived in Elyton, about two and a half miles from the land in controversy ; that the land was unenclosed, vacant woodland, until about the year 1886, the Elyton Land Company built, and since then it and its grantees have operated, a dummy railroad line for about half a mile through and across it; that the greater portion of the land is still unoncloscd, faennt woodland, all the improvements thereon, except the dummy track, being some six or eight dwelling houses, the first, of which was built in 1887 or 1888 ; that Joab Bagley died intestate, in April, 1876, and dower has never been assigned to complainant in said lands ; that Bagley left nothing among his papers to indicate to com
Appellant contends that Bagley conveyed these lands-to ¥. ¥. Brown, in 1870, and Brown conveyed them in December, 1870, to Josiali Morris, and Morris and wife, to the Elyton Land Company in February, ■ 1871. To-show alienation from Bagley to Brown, appellant relies-principally upon the evidence of said W. W. Brown. The complainant objected to the competency of Brown to-testify, on the ground that his evidence related to a transaction between him and Bagley in which the estate of the heirs of the latter were directly interested, and because a sufficient predicate had not been laid by defendant for introducing secondary evidence of the contents of a deed alleged to be lost. Waiving a consideration of these questions, not now before us, and regarding them as properly ruled in favor of appellee, we are constrained to hold, that defendant has not established a conveyance of said land by said Bagley during his life. Brown says, “I swapped 80 acres of land, to him, for 80 acres nearer to me. I gave him this deed here, last testified about, and he gave me a deed. My deed called for 80 acres and his called for 80 acres also.” He also said that Bagley and his wife, the complainant, signed the deed. But he swore that he did not see it signed, and that he did not know the handwriting of either Bagley or his wife. It is not shown by him, that said instrument was either attested, acknowledged or recorded. He also swore, that he was unable to say what words the alleged deed from Bagley to him contained, how many lines it contained, or what any line contained, how the land was described, — by boundaries or numbers, — nor whether there was any consideration expressed in the deed, or if so, what it was. ‘ ‘The factum of a written instrument may be shown without its production, or accounting for its absence, but not its contents or legal effect. Though the witness may call it a deed or conveyance, this is not proof that it is a deed.” — Hancock v. Kelley, 81 Ala. 378.
6. There is nothing in the defense, that the defendant company, and those under whom it claims, were in adverse possession of the premises for more than twenty years prior to the commencement of this suit-. There is no proof that during that time, the occupation of appellants and those from whom they claim was open, notorious, uninterrupted and continuous. The proofs fail to show that there was any person in the occupation of the premises or any part of it, claiming title thereto, in hostility to the owner, from 1870 to 1887 or 1888. There wore occasional acts tending to show possession, such as cutting wood by Brown, in 1880 ; running street linos in 1870 or 1871; surveying it into streets and blocks in 1882 ; grading a dummy line in 1884, and laying the track in 1886, but all such acts were disconnected, were not continuous, and of brief duration.— Eureka Co. v. Norment, 104 Ala. 625 ; Parks v. Barnett, Ib. 136 ; Norment v. Eureka Co. 98 Ala. 181 ; Ross v. Goodwin, 88 Ala. 390.
7, There is no error of which appellant can complain in'the decree'rendered. Every fact required to be as
Affirmed.